Honorable J; A. Amis. Jr: Opinion No. O-2226
County Attorney
Rains County Re: Holding two offices--con-
Emory, Texas stitutional provisions con-
strued-- member, County
B~oard of School Trustees
and member of local com-
munity committee, Agricul-
tural Adjustment Administra-
Dear Sir: tion.
Your reqwast for .an opinion as to whether one per-
son, at the same time may ser.ve as a member of the county
board of school trustees and as a member of a local community
committee operating under and suprrvised by the United States
Department of Agriculture through the Agricultural Adjustment
Administration, has been received and carefully considered by us.
The determination of then question submitted must
be grounded upon an interpretation of the provisions of the Texas
Constitution. Section ,12 of Article 16 of the Constitution reads as
follows :
“No ~member of Congress, nor person holding
or exercising any office of profit or trust, undrr the
United States, or either of them, .or under any for-
eign power, shall be eligtble as a member of the Leg-
Mature, o,r hold or e%ercise any office of profit or
trust under this State.”
Section 33 of Article 16:
“The Accounting Officers of this State shall
.;either draw nor pay a warrant upon the Treasury
in favor of any person, for salary or compensation
as agent, officer or appointee, who holds at the same
time any other office or position of honor, trust or
Honorable J. A. Amis, Jr., page 2
profit, under this State or the United States,
except as prescribed in this Constitution. * * *.”
The pertinent provision of section 40 of Article
16 is as follows:
‘No person shall hold or exercise, at the
same time, more than one civil office of emolu-
ment, except that of justice of the peace, county
commissioner, notary public and postmaster * * *
unless specially provided herein * * * .”
The election, qualification, service, duty and
compensation of members of the county board of school trus-
tees is prescribed by Title 49, Chapter 11 of the Revised Civ-
il Statutes of Texas, 1925. as amended (Articles 2676 et seq.,
Vernon’s Annotated Texas Statutes.) Such members serve for
a definite term, receive compensation on a per diem basis pay-
able out of the State and County Available School Fund by war-
rants drawn on order of the County Superintendent and signed
by the President of the county board, and take the official oath
of office.
By Act of Congress, Public No. 430. Se.venty Fifth
Congress. Chapter 30. Third Session, H. R. No. 8505, Title 1.
Section 101. the Secretary of Agriculture was authorized to set
up such regulations as might be required in administering the
Agricultural Adjustment Administration program. Pursuant
to such delegation of authority, in the Articles of Association,
under which the various counties operate,‘provision is made
for county and local committeemen to be elected by producers
in the county upon their receiving a majority of the votes cast
for the position to which they are elected. Local commtttee-
ment are elected to serve from January 1 to December 31 of
the current year, or until their successors have been duly elected.
Local committeemen are not required to take an oath of office;
they do not receive a stipulated salary, but are paid at a certain
rate per diem for the days which they serve. (This inform,ation
furnished per l,ettei, E. N. Holmgreen, Administrative Officer in
charge, Agricultural Adjustment Administration, United States
Department of Agriculture, College Station, Texas.)
Honorable J. A. Amis, Jr.., page 3
Under the title “Public Officers”, Texas Juris-
prudence gives the following statement~df the law:
“Many judicial definitions of ‘public office’
are to be found in the reported cases, butthey are
substantially of the same import. It is said to be
a right to exercise a public function or employment
and take the fees and emoluments belonging to it;
‘a publi: station or employment conferred by the
appointment of government’; and ‘the right; authority
and duty created and conferred by law, by which, for
a given period, either fixed by law, or enduring at
the pleasure of the creating power, an individual is
invested with some portion of the sovereign function
of the government, to be exercised by him for ‘the
benefit of the public.’ The individual so invested is
a public officer. He is a person who exercises some
functions of the government -- one who is commisl
sioned or authorized to perform any public duty.”
(34 Tex. Jur. 322).
.From the case of Commissioners Court of Lime-
stone County vi Garr’ett, (Corn. App.) 236 S. W. 970 at p. 972. we
take thenfollowing quotation from Mechem on Public Officers:
“Public officers are usually required by law
to take the oath of office, and this fact goes far in
determining the character of the duty. But the tak-
ing of the oath is not an indispensable criterion, and
the office may exist without it, for, as has been said,
the oath is a mere incident, and constitutes no part
of the office. * * *, If a duty be a continuing one, which
is defined by rules prescribed by the government, and
not by contract, which an individual is appointed by
government to perform, who enters on the duties per-
taining to his station without any contract defining
them, if those duties continue though the person be
changed. it seems very difficult to distinguish such a
charge or employment from an office or the person
who performs the duties from an officer. * * *~ ”
Honorable J. A. Amis. Jr., page 4
The same authority contains the following state-
ment:
y ‘A man is not the less a public officer
where his authority is confined to narrow limits;
for it is the duty .of his office and the nature of
that.duty which make him an officer, a¬ the
extent of his authority.’ See Me&em on Public
Officers, § 9.”
in the Supreme Court case of Kimbrough v. Bar-
nett, 93 Tex. 310, 55 S. W. 122, is the following:
‘Public office is the right, authority, and
duty created and conferred by law by which, for
a given period either fixed by law or end,uring at
the pleasure of the creating power, an individual
is invested with some.,portion of the sovereign
functions of the governm~ent to be exercised by
him for the benefit of the public.”
From the case of State of Montana, ex rel. Julius
Barney v. R. N. Hawkins, Sacretary of State, ,251 P. 411. 53
A. L. R. 583 (1927) we quote:
“After an exhaustive examination of the au-
thorities, we hold that five elements are indis-
pensable in any position of public employment, in
order to make it a public office of a c%vil nature:
(1) It must be created by the Constitution or by
the Legislature or cremated by amunicipality or
other body through authority conferred by the Leg-
islature; (2) it must possess a delegation of a por-
tion of the sovereign power of government, to be
exercised for the benefit of the public; (3) the pow-
ers conferred, and the duties to be discharged., must
be defined, directly or impliedly, by the Legislature
or through legislative authority; (4) the duties must
be performed independently and without control of a
superior power, other than the law, unless they be
those of an infereior or subordinate office. created
Honorable J. A. Amis, Jr., page 5
or authorized by.the Legis,latpre, Andyby it
placed under the general control of a superior
officer or body; (5) it must haves some perma-
nency and continuity, and not be only temporary
or occasional.”
That a member of the county board of school
trustees holds an “office”; that it is an office of ‘profit or
trust”; also an “office or position of honor, trust or profit”
and a “civil office of emolument” is not open to question.
See Hendericks v. State, (Civ. App.) 49 S. W. 705; Thomas v.
Abernathy County Line Independent School District (Corn. App.),
~290 S. W. 152; Commissioners’ Court of Limestone County v.
Garrett (Corn. App.). 236 S. W. 970; 34 Tex. Jur. 331 an~dcases
cited under § 7.
With the exception of the taking of an official
oath, it appears to us that a member of a local community
committee meets the presciibed essentials as an “officer”
and holds an ‘office” within the contemplation of our consti-
tutional inhibitions. According to Mechem’s statement, -quoted
with approval by our Commission of Appeals in Limestone Coun-
.ty V. Garrett, supra, the taking of an oath is not an indispensable
criterion, all the other elements being present.
As was said in our opinion No. O-490 on March 17.
1939:
‘The restraint against a person exercising
or holding more than one civil office of emolu-
ment might appear to be a manifestation of a super-
abundance of caution on the part of the framers of
the constitution, where the offices are not of major
importance, or of high financial remuneration, as
is the present case. On the other hand, said prohi-
bition can amount to a protection of fundamental
rights and liberties, and a bulwark of democratic
institutions and principles. Consequently, regard-
less of the personalities, offices and compensation
involved, the constitutional mandate must be strictly
obeyed.”
Honorable J. A. Amis, Jr.. page 6
You are therefore advised that in our opinion
one person may not, at the same time, hold the office of
county school trtitee and act as a IocaI community committee-
man under the Agricultural Adjtistmcnt Act.
Yours very truly
A-I’TORNEY GENERAL-OF.
TEXAS
By /s/ Benjamin Woodall
Assistant
APPROVED MAY 23. 1940
/s/ Gerald C. ‘Mann
ATTORNEY GENERAL OF’ TEXAS
:.
BW:jti:da
,..
.&PROVED OPINLON
COMMITTEE ‘.
BY BWB
Chairman